University of Illinois
Are lies information? This was the question before the Supreme Court of Michigan in a 2016 case (People v. Harris, based on a 2009 incident). A police officer was charged with pulling a motorist out of his car and beating him; he and two other police officers were charged with obstruction of justice for lying about what happened. Michigan law protects officers from self-incrimination by providing that “an involuntary statement made by a law enforcement officer, and any information derived from that involuntary statement, shall not be used against the law enforcement officer in a criminal proceeding.” The law further defines an involuntary statement as any information that might lead to dismissal from the force or other sanctions. The question before the court was: Are false statements information, and thus protected?
To answer the question the court turned first to dictionaries, following a trend that has increased dramatically since the mid-1980s. In the 1960s dictionaries were referenced in only sixteen opinions of the US Supreme Court; in the decade 2000–2010 dictionaries were cited in 225 opinions (Kirchmeier & Thumma 2010:85). The judicial philosophy of Strict Textualism, also referred to as Originalism and New Originalism, has spurred this lexicological turn. The late Justice Antonin Scalia was a leading proponent of this approach, which claims to seek the “original public meaning” of the Constitution and subsequent statutes. The justices attempt to assess how the public would have understood these texts at the time they were written. The alleged purpose of these efforts is to keep appointed judges from rewriting laws written and voted on by elected representatives (Solum 2011 and 2017 traces the twists and turns of this judicial philosophy).
For the interpretation of the Constitution, the justices have consulted Noah Webster’s dictionary (1828) along with those of Samuel Johnson (1755) and of Thomas Dyche and William Pardon (1735). The first appeared 40 years after the writing of the Constitution, the other two in England, and well before the Constitutional convention. Justices Alito and Thomas, in their dissent to the decision of Manuel v. Joliet (2017), considered the definition of “seize”, trying to sidestep the issue of chronology by citing later editions of the British dictionaries. The justices conveniently overlooked one of the definitions in Dyche and Pardon that contradicted their perspective, evidence of what Aprill (1998) has called ‘dictionary shopping’. Considering the notion of cruel and unusual punishment (Eighth Amendment) Justice Thomas chose to cite the first half of Johnson’s and Webster’s definition of cruel but to ignore the second half (Stinneford 2017: 467-468). Maggs (2014) notes many ways in which dictionaries can be misused but retains confidence that dictionaries can represent ‘objective meaning’.
One new twist on originalism is the use of linguistic corpora. A linguistic corpus, such as the Corpus of Contemporary American English (COCA), is a computerized collection of texts, such as newspapers, magazines, and, for spoken language, the transcripts of TV and radio programs. These can be searched to determine frequency of usage and collocations – placing words in context. That context is often not discernible from dictionaries. COCA has more than 520 million words in its corpus, but covers only the period 1990-2015; the Corpus of Historical American English (COHA) has 400 million words, from sources going back to 1810.
Some judges have used Google to help determine the meaning of a term – for example, recently retired 7th Circuit Judge Richard Posner’s study of the meaning of “harboring” undocumented immigrants (U. S. v. Costello, 2012) or Utah Judge Thomas Lee’s analysis of the meaning of “discharge a weapon” (State v. Rasabout, 2015). Linguistic corpora, such as the COCA and COHA, are more focused and offer better search mechanisms but, as COHA’s earliest texts date to 1810, it offers limited help for constitutional questions.
The real problem in relying on such sources is a lack of awareness of how linguists have created – and continue to create – dictionaries, grammars and linguistic corpora. All three of the early dictionaries cited had distinct biases of class, region and religion, and were compiled from very limited sources. Modern dictionaries also have their biases: the usage panel of the American Heritage Dictionary was created in reaction to the supposed ‘permissiveness’ of Webster’s Third. Its members are drawn mostly from the intellectual elites of the east and west coasts. Merriam-Webster‘s citation files are huge, but still rely heavily on the intellectual class of the northeast, including The New York Times and The New Yorker. Grammars and grammatical theory itself are similarly influenced by often unacknowledged ideologies. Language and the study of language are social products, as is the law.
The courts’ confidence in the science of linguistics seems to depend on whether the expert testimony supports the defendants or the state. Courts have often chosen to dismiss expert testimony by linguists concerning the need for interpreters for defendants with limited command of English. In U.S. v. Dutchie (2008) and Marin v. Busby (2014), the courts preferred to believe casual observations from non-experts over the conclusions of linguists William Eggington and Roseann González, two of the most distinguished scholars on testing comprehension levels by non-native speakers of English. But when Professor Eggington’s testimony supported the state’s case to prevent a Spanish monolingual from running for elected office in Arizona (Escamilla v. Cuello, 2012), the court was happy to rely on it.
To return to the People v. Harris, can linguists help resolve the meaning of ‘information’? In a 2016 article, Utah Justice Lee and two clerks in his court proclaimed that linguistic corpora would solve the problems of interpretation confronting the courts. Original public meaning would be “more rigorously empirical and transparent.”
Empiricism is in the eye of the beholder. The majority in the Court of Appeals in Michigan relied on Random House Webster’s College Dictionary to determine that information could only be true statements. The Court of Appeals ruled that “because an officer’s lies do not impart any truths or facts, they necessarily do not constitute ‘information’.” The officers were back in trouble, so they took the case to the next level.
In the Harris case, the Supreme Court of Michigan invoked definitions of ‘information’ in three dictionaries and then turned to the COCA to reach its decision. Was this the realization of the hope that corpora will solve questions of legal interpretation? Not really. The majority chose one way to interpret the evidence drawn from COCA, and the dissent chose another.
The majority looked at common collocations, the adjectives that most frequently modify the term ‘information’. The most common is ‘accurate’, but ‘false’ and ‘inaccurate’ are also found, suggesting that information can be true or false.
The dissenting justices focused on the lack of adjectives in the vast majority of uses of ‘information’. The corpus had 168,187 examples of ‘information.’ Only 937 were modified by one of the terms considered by the majority. Therefore 99.44% of the examples of ‘information’ made no mention of truth or falsity. The context for those examples assumed that information meant true information.
The Supreme Court of Michigan, in a 5-2 decision, reversed the Appeals Court ruling. The officers’ statements were excluded, preventing prosecution for obstruction of justice. The lying officers walked.
Linguists and the products of their work can help provide parameters for legal interpretation, but the lexicological turn of the New Originalists has only the aura of empiricism, not the substance. It is no substitute for wisdom.
Aprill, Ellen P. 1998. “The Law of the Word: Dictionary Shopping in the Supreme Court”. Arizona State Law Journal 30: 275-336.
Kirchmeier, Jeffrey L & Samuel A. Thumma. 2010. “Scaling the Lexicon Fortress: The Supreme Court’s Use of Dictionaries in the Twenty-First Century”. Marquette Law Review 94: 77-261.
Maggs, Gregory E. 2014. “A Concise Guide to Using Dictionaries to Determine the Original Meaning of the Constitution”. George Washington University Law Review 82: 358-393.
Phillips, James C., Daniel M. Ortner & Thomas R. Lee. 2016. “Corpus Linguistics & Original Public Meaning. A New Tool to Make Originalism More Empirical”. Yale Law Journal Forum 126: 20-30.
Solum, Lawrence B. 2011. “What is Originalism? The Evolution of Contemporary Originalist Theory”. The Challenge of Originalism Theories of Constitutional Interpretation, ed. by Grant Huscroft & Bradley W. Miller, 12-41. Cambridge: Cambridge U. Press.
Solum, Lawrence B. 2017. “Originalist Methodology”. University of Chicago Law Review 84: 269-295.
Stinneford, John F. 2017. “The Original Meaning of Cruel”. Georgetown Law Journal 105: 441-506.
Escamilla v. Cuello Supreme Court of Arizona 230 Ariz. 202
Manuel v. City of Joliet U.S. Supreme Court, 137 S.Ct. 911, 2017.
Marin v. Busby U.S. District Court, California Central District, 2014 U.S. Dist. 83112, 2014
People v. Harris Supreme Court of Michigan, 439 Mich. 332, 2016
State v. Rasabout Supreme Court of Utah 356 P.3d 1258
US v. Costello Seventh Circuit Court of Appeals 666 F.3d 1040
US v. Dutchie U.S. District Court, Utah, Central Division, 2008 U.S. Dist. LEXIS 66823, 2008
How to cite this post
Kibbee, Douglas. 2018. Lawyer, Linguists and Truthiness. History and Philosophy of the Language Sciences. https://hiphilangsci.net/2018/03/14/lawyers-linguists-and-truthiness/
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